Gay Marriage

He sees the “gay marriage” issue as one where “symbolism interferes with real discussion,” much in the same way (in his opinion) as the recent brouhaha over issuing penalty notices for a whole range of minor offences which has led our beloved Daily Telegraph and its kind to accuse the state government of being “soft on crime.”

First, it is far from apparent to me that the issuing of penalty notices for minor offences will lead to any softness on crime. For example, when a system of penalty notices for cultivation and possession of marijuana was introduced in South Australia, my recollection is that the number of recorded infringements actually went up rather than down. That is, once the police can start issuing penalty notices, they issue them to more people because it is easier to do, and people will probably not contest them for the same reason. So the effect may well be, in at least some areas, that a whole range of offences which were simply too trivial to be worth prosecuting and hence mostly went unpunished unless committed by somebody against the police had some other reason for taking action will now be punished.

My own view is that we can expect to see the police throwing their weight around and issuing notices for a whole range of minor street offences committed by the usual suspects. In due course, when the fines aren’t paid, this will then mature into a secondary crop of unlicensed drivers, because that is the way the state chooses to enforce fine collection these days, even if the cause of the fine has nothing to do with your driving record. Too bad for you, incidentally, if such a driver’s insurance is void because of this when your car is damaged in an accident and that driver is the one at fault, even if (to be realistic) you probably shouldn’t count on many such drivers being insured for third party property damage at all.

Still, Jim’s argument, as I take it, is that the “Laura Norder” bunch, who want to see the full panoply of criminal punishment visited on minor offenders, are allowing their enthusiasm for the symbolism of such punishment to cloud their view of what is really an efficient solution to the allocation of policing resources. If they could look past the symbolism, they ought to realise that they will get better value from police if the police are out and about policing rather than dealing with the paperwork and court appearances for relatively minor charges.

But back to “gay marriage.” Jim writes:

I grew up in a period when homosexuality was both a moral sin and a crime. I am very glad that we have a more tolerant attitude now. I support civil unions that will give same sex couples the same legal rights.

So far so good. He continues:

I do not support gay marriage.

Jim is a careful writer. I do not read this as meaning that he opposes gay marriage, merely that he does not support it.

Civil unions give gays rights without hurting anyone else. With the exception of a few bigots, I think that most people would accept a properly argued case for civil unions.

Now, I agree with the first sentence. I’m not so sure about the second, and the fate of the recent attempt in the ACT to enact civil unions is what immediately springs to mind. What was not properly argued about that case? And what is the importance of “proper argument” anyway? And finally, what does what “most people would accept” have to do with a question of equality of legal and (just to be tendentious, though it amounts to nothing more) human rights?

Well, of course, quite a lot actually, and certainly quite a lot when it comes to questions of strategy and tactics. I think that Jim is wearing his “philosopher-king” (or benevolent mandarin) hat here. As a wise and just ruler for a day (notionally) his assumption of an essentially political position is not something I hold against him personally, even though I think he is wrong, and probably because of his instinctive conservatism.

Jim’s position is not so different from that which was adopted until very recently by the GLBT Rights Lobby. The strategy was that first priority should be given to obtaining equality for gay and lesbian (etc) relationships with de facto relationships. This has almost entirely been achieved at the state level. Such equality however, would not be complete equality, because heterosexuals in de facto relationships would always have the choice of becoming married de jure. Accordingly, so the theory went, the next step would be to agitate for some means whereby, like heterosexuals, gay and lesbian (etc) couples could take some formal juridical step which would confer on them presumptive status as a couple, just as marriage does for heterosexuals. In time, as people grew accustomed to this, such “civil union” could and probably would become assimilated to marriage.

This softly softly catchee monkey approach has stalled. It has stalled at the federal level with the intransigence of the Howard government which despite former political promises now insists that it can only consider the rights of people in gay etc relationships at the same time as a whole raft of other amorphous (but sexually innocuous) interdependent relationships. Along the way, the Commonwealth has thrown up a few other roadblocks, such as the statutory entrenchment of the traditional common-law definition of marriage as between a man and a woman, and foreshadowed bars, so far as it is within the Commonwealth’s power, to gay or lesbian adoption. The lowest point of this was Ruddock’s rejection of the ACT civil union, because (although I take it that it would pass Jim’s test of conferring the status of marriage in all-but name) it looked too much like marriage.

The problem is that the religious right have seen civil union as the stalking horse which, aspirationally at least, it is. It is not just the name of marriage which they object to conferring on non-heterosexuals, although that is not to deny the considerable power which they hope to derive from preserving the heterosexist monopoly on it. Every slight to the equal rights of gay and lesbian etc people is another legitimisation of the thousand playground taunts and hidden shames and guilt.

To return to Jim’s post, surely gay marriages, just like civil unions, give gays lesbians etc rights without hurting anybody else. A man and a woman will not be any the less married if some men are married to men and some women are married to women (which funnily enough, has already happened where one partner has subsequently changed sex). OK: that “surely” betrays that I anticipate resistance here. As Jim puts it:

Marriage is a different issue. Marriage is a religious sacrament with strong traditional meanings in a number of faiths. Those who try to take the word marriage and apply it in a way that is anathema to many cause hurt and resistance.

Of all the possible arguments, the reference to marriage as a sacrament seems to me to be about the weakest: marriage was a latecomer to the canonical sacraments, only really being established as such in parts of the Western church in the 16th century. It seems a tall order for the state to shut gays and lesbians out of marriage because it is an institution which is necessary to teach the faithful about the relationship between Christ and the church – which in itself suggests a view of the institution which is somewhat at odds with modern marriage. And sacramental views of marriage must vary broadly across religions.

I expect Jim isn’t so concerned about sacraments per se – after all, there are plenty of other sacraments on which the state takes no fixed position: his point seems to be that marriage is a widely distributed cultural institution which has attracted deeply held feelings. And these feelings will be hurt if men are allowed to marry men and women are allowed to marry women.

And this is where my temporizing “surely” comes into play. I do not accept that the state should pander to such “hurt.” It’s the sort of hurt which is in truth only offence, and is not harm. It is just an extension of the widely held hurt about people being gay or lesbian (or whatever) at all, or being in relationships based on this. Our legal system and our state have got over this, so far as sexual activity is concerned, and in the end they need to take the same step for relationships of the same ilk. And to bring religion into it only exacerbates my view.

Jim concludes:

So using the word “marriage” detracts from the immediate real issue, the resolution of existing legal inequities.

It will follow from the above that I don’t agree with him. Why should gay or lesbian people who wish to enter legally into a formal exclusive (to other formal exclusive relationships at least) and life-long (subject to the Family Court) relationship be confined to a kind of Clayton’s marriage? The word “marriage” is symbolic but it is not emptily symbolic. That’s why I support gay marriage, even though, God knows, I’m not in any great hurry to marry myself.

Of course I would also be happy if some steps were taken to resolve existing legal inequities, and providing a means for people to formalize their relationships by means of a civil union would, in the present circumstances, be an enormous and progressive step. But the time has passed when we can pretend it will be the end of the road.

5 Responses to “Gay Marriage”

I am glad you took the bait, M. You have caught some, but not all, of my fairly carefully phrased thoughts. I will respond in a proper post, but not tonight. I am simply too tired to express the issues with the required clarity.

I find the clarity and insight of your writing startling, Marcel. My own idea is not that gay marriage should be allowed, but rather there should be no legal (as opposed to religious) recognition of marriage whatsoever. — A buyer beware approach.

About the entry above this one: I concur with your remarks about introductory legal law school subjects. If I had been thrown into torts in first semester, rather than into “legal institutions”, I might have saved myself 6 months of my life.